Crimes of Moral Turpitude

Completing a pre-trial diversion program, and obtaining dismissal of the charges, does not constitute a conviction under immigration law as long as there has been no plea of guilty or no contest entered at any time.[51]  The new statutory definition of conviction requires a plea or admission of sufficient facts to constitute a conviction.  A dismissal that does not meet these statutory requirements does not constitute a conviction.[52] 

            Unfortunately, a recent decision from the Board of Immigration Appeals may disrupt this analysis.  In Matter of Cabrera,[53] the BIA held that a Florida deferred adjudication was a “conviction” for immigration purposes, even though a finding of guilt was withheld, because the court had still required the defendant to pay the standard costs, surcharges, restitution and fines required in a criminal court setting, finding that payment of these costs and fines was a form of “punishment” under the INA definition of “sentence,” as a matter of Federal law.[54]

[51] Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (disposition under Florida’s pretrial intervention program, Fla. Stats. § 944.025, held not a conviction for immigration purposes); Matter of Ozkok, 19 I. & N. Dec. 423 (BIA 1986).  This has not changed under IIRAIRA § 322, which amends INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) to create a statutory definition of conviction that is more encompassing than the definition set out by the BIA in Matter of Ozkok, supra.  See Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc).  But see Salazar-Regino v. Trominski, 415 F.3d 436 (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), even though it did not constitute grounds for removal under the BIA law in place at the time the plea of guilty was entered), following Moosa v. INS, 171 F.3d 994, 1005-1006 (5th Cir. 1999); De Vega v. Gonzales, 503 F.3d 45 (1st Cir. Sept. 17, 2007) (Massachusetts continuance of a criminal case based on an admission of facts sufficient for a finding of guilt and conditioned on payment of restitution constitutes a "conviction" under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration purposes, even though no actual finding of guilt had been made in this case); United States v. Zamudio, 314 F.3d 517 (10th Cir. 2002) (Utah plea in abeyance is a conviction for immigration purposes, satisfying INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as a plea “to sufficient facts to warrant a finding of guilt.”).

[52] For more information, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 7.27-7.32 (4th ed. 2007).

[53] Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008).

[54] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).